Two of the most conservative Republicans in the Senate joined Democratic Sen. Kirsten Gillibrand of New York Tuesday in supporting her proposal to take the decision whether to prosecute sexual assault cases out of the hands of military commanders.
Sens. Rand Paul of Kentucky and Ted Cruz of Texas backed Gillibrand in pushing the bipartisan Military Justice Improvement Act that would give military prosecutors the discretion whether to pursue charges in violent crime cases such as rape or assault. Victims would not be required to first report the offense to their immediate commander.
The Senate is expected to vote on the bill later this month as an amendment to the 2014 National Defense Authorization Act.
The proposal has about 33 Senate cosponsors, but was defeated at the committee level.
The Senate Armed Services Committee instead opted for the proposal by Chairman Carl Levin, D-Mich., for an automatic higher-level review of any decision by a commander not to prosecute a sexual assault allegation.
The committee also adopted several other changes, including a requirement that each military service establish a special victims’ counsel and for each branch to develop guidelines for the temporary reassignment of an active duty service member who is accused of a sexual assault.
Levin defended his approach Tuesday at a breakfast with reporters. “You’ve got to hold commanders accountable for changing the culture.”
Gillibrand, however, said the issue of whether commanders recommend prosecution involves only a tiny number of cases.
“That’s not our problem,’’ she said, pointing out that 90 percent of victims are not reporting the crimes because they don’t trust their chain of command.
“If the victims do not trust the chain of command, they will not report these cases,” Gillibrand said. “If they have witnessed other people reporting being retaliated against, if they’ve witnessed others being shoved out of the military because they reported these crimes, they will not trust the system that the chain of command has put into place.’’
That’s a key reason why Paul is supporting Gillibrand’s approach.
“Justice is very important for me, both for the accused and the victim,’’ he said. “I am concerned that victims of assault, though, may be deterred from reporting their assault if they have to report it to their boss.’’
Cruz said he was originally undecided on the issue, but was swayed by Gillibrand’s “exceptionally passionate and able advocacy.’’
Cruz also was persuaded that many victims are not reporting the crimes because they are handled within the chain of command. “There can be no prosecution, there can be no deterrence, if we don’t have reporting of crimes,’’ he said.
Cruz also supports Gillibrand’s approach because several military allies, including the United Kingdom and Israel, have made a similar change.
“I’m a big believer in following the data where they lead and the fact that other professional militaries have been able to maintain discipline, maintain the chain of command, maintain effectiveness, maintain readiness and at the same time improve reporting and improve deterrence was persuasive,’’ he said.
The fact that military allies of the United States have made the change makes it a mainstream proposal, said Sen. Barbara Boxer, D-Calif., who also attended the news conference.
“The status quo is out of the mainstream,’’ Boxer said. “It isn’t working and I am as proud as I can be to stand with a coalition like this.’’
Paul said that Gillibrand agreed to several changes that have made her proposal stronger by expanding the number of offenses that would remain within the control of the chain of command.
“I always thought the motive was good for the bill,’’ Paul said. “But I think the bill’s even stronger. I see no reason why conservatives shouldn’t support this. The only thing I think is standing in the way is, just sort of the status quo.’’
About three dozen offenses—such as directly disobeying an order or going AWOL—would continue to be handled through the discretion of the chain of command, while criminal offenses such as assault and rape would be prosecuted by the military’s own judicial system.

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